Elms v Kyneton District Health Services (Ruling)
[2013] VCC 126
•26 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-10-02010
| JUDITH KAYE ELMS | Plaintiff |
| v | |
| KYNETON DISTRICT HEALTH SERVICES | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September and 12 November 2012 | |
DATE OF RULING: | 26 February 2013 | |
CASE MAY BE CITED AS: | Elms v Kyneton District Health Services (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 126 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Extension of time
Legislation Cited: Limitation of Actions Act 1958, s27K, s27D, s27F, s27K and s27L.
Cases Cited: Donmez v Neissa [2012] VSC 73; Spandideas v Vellar [2008] VSC 198; Commonwealth of Australia v Shaw [2006] NSWCA 209; Delai v Western District Health Service & Anor [2009] VSC 151; Callan v Healthscope Ltd [2008] VSC 88; Tsiadis v Patterson (2001) 4 VR 114; Harrisv Commercial Minerals Ltdand Ors (1996) 135 ALR 353; Australian Iron & Steel Ltd v Connell (1959) 102 CLR 522; Berriman v Cricket Australia (2007) 17 VR 528; Lovett v Le Gall (1975) 10 SASR 479; Repco Corp Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Bell v SPC Ltd (1989) VR 170; Richards v State of Victoria & Ors [2001] VSC 52.
Ruling: Application granted – Extension of period of limitation applicable to the cause of action on which the plaintiff relies to 11 May 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms K Gladman | Clark Toop & Taylor |
| For the Defendant | Ms M Hartley SC with Mr R Harper | Minter Ellison |
HER HONOUR:
1 This is an application pursuant to the Limitation of Actions Act 1958 (“the Act”) brought by Summons dated 15 March 2012, that the time within which the plaintiff be permitted to commence this proceeding be extended to 11 May 2010.
2 By consent, at a further hearing of this matter on 12 November 2012, the application was amended to also include a further ground of relief, namely, a declaration that the Writ filed 11 May 2010 was filed within a period of three years before the date of the cause of action being discoverable by the plaintiff within the meaning of s27D and s27F of the Act.
3 By Writ filed 11 May 2010, the plaintiff seeks damages in respect of injuries allegedly sustained by her during the labour and delivery of her son (“the delivery”) at the defendant’s hospital (“the Hospital”) on 21 January 1999 (“the said date”).
4 By Statement of Claim filed 9 June 2011, the plaintiff alleges against the defendant that she sustained injury when the defendant negligently managed the delivery so as to cause injury to her rectum, and negligently repaired an episiotomy wound, causing the development of a rectovaginal fistula and its sequelae, together with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
5 By its Amended Defence filed 5 January 2012, the defendant pleaded reliance on s27D of the Act on the basis that the cause of action alleged against it was discoverable more than three years prior to the date on which the plaintiff’s proceeding was issued.
The Plaintiff’s Evidence
6 On the said date at the Hospital, the plaintiff required an episiotomy to assist in the delivery (“the procedure”). The procedure was performed by Dr Priest, who still practises in Kyneton.
7 The plaintiff deposed that following the delivery, she was discharged from the Hospital on 25 January 1999. She understood the stitches used in the procedure were dissolving and she was not required to attend the Hospital for their removal.
8 About six weeks after the delivery, the plaintiff attended the Hospital for a general check up. She was then examined but she could not recall the stitches being removed.
9 During 2000, the plaintiff developed problems with abdominal pain and diarrhoea on a number of occasions and was initially prescribed Imodium. Her symptoms did not clear and she was admitted to the Hospital for a couple of days due to significant fluid loss, and there was some improvement in her diarrhoea.
10 To the best of her knowledge, the plaintiff had no awareness then of any problem involving faecal discharge through her vagina (“the discharge”), and her understanding from the Hospital records was that no such problem was noted at that time.
11 The plaintiff was unsure as to when she first became aware of the discharge, but understood notes indicated that she told her general practitioner, Dr de Groot, at Brooke Street Medical Centre (“the Medical Centre”) on 22 November 2001, that after wiping herself when going to the toilet she found some faeces which appeared to come from her vagina.
12 The plaintiff recalled Dr de Groot advising her she had an infection, and he prescribed a cream called Canesten. The plaintiff thought that the faeces problem must have been related to the infection for which she was given the cream.
13 The plaintiff continued to use the cream for about three years on a daily basis, believing her symptoms would settle down. She also attended the Medical Centre, where she told doctors of the persisting discharge problem.
14 The plaintiff does not recall any examination which identified the true nature of her problem and she continued to believe it was infection-related and the cream was the most appropriate treatment.
15 The plaintiff deposed that it was not until 7 April 2005, on referral from Dr Ferguson, that she attended a gynaecologist, Dr Francis. Dr Francis suggested the plaintiff be admitted to the Hospital for the purposes of a dilation and curette, laparoscopy, pap smear (which she had difficulty undergoing because of considerable discomfort), as well as an examination under anaesthetic (“EUA”) to determine if there was a fistula present.
16 This procedure was performed on 7 November 2005 and the plaintiff believed, at that time, a rectovaginal fistula was identified. Dr Francis drew a diagram and explained to the plaintiff that faeces was leaking from her bowel through the fistula into her vagina. He advised her to undergo a further procedure to repair the fistula.
17 The plaintiff also recalled Dr Francis suggesting to her that she should consult a solicitor, Patsy Toop, in relation to the problem. The plaintiff first attended Ms Toop’s offices on 23 November 2005. She was then advised by Ms Toop that it would be necessary for her to obtain the plaintiff’s records and also for the plaintiff to complete the treatment recommended before Ms Toop was able to take the case much further.
18 With Dr Francis’ advice in relation to the need for further treatment, the plaintiff was then referred by Dr Ferguson to the Northern Hospital (“the Northern”), where she consulted Mr Bui, a colorectal surgeon, in early March 2006.
19 The plaintiff recalled Mr Bui performed a day procedure, repeating the laparoscopy that Dr Francis had performed. The plaintiff deposed Mr Bui said he could find nothing wrong with the plaintiff’s bowel and that he thought she needed a hysterectomy.
20 Mr Bui did in fact refer the plaintiff to a gynaecologist, Dr Haverfield, and the plaintiff recalled that in the meantime she was placed on a waiting list. The plaintiff did not see Dr Haverfield at that time and heard nothing more from the Northern.
21 It was not until Dr Ferguson wrote to the Northern in October 2008 noting that the plaintiff had been on the waiting list for two and a half years that there was a further attendance there.
22 The plaintiff returned to Mr Bui, who again referred her to Dr Haverfield, and she saw him within a short time.
23 Dr Haverfield recommended a further procedure, which was performed at the Hospital on 13 May 2009. The plaintiff believed this procedure involved, again, EUA, laparoscopy, dilatation and curette, and diathermy for endometriosis, as well as taking specimens. She understood during that examination under anaesthetic, that the fistula was again identified.
24 The plaintiff explained to Dr Haverfield she was not happy about going back to the Northern given the previous delay, and he suggested she consult a colorectal surgeon, Mr Wale, at The Alfred. He recommended a further procedure involving a flexible sigmoidoscopy to internally identify and mark the fistula with a view to arranging for the plaintiff to be admitted to The Alfred for a longer procedure to repair the fistula. The flexible sigmoidoscopy was performed on 1 September 2009 at the Hospital.
25 On 23 October 2009, the plaintiff was admitted to The Alfred, where Mr Wale attempted a mucosal flap repair of the recto vaginal fistula.
26 On 25 February 2010, Mr Wale performed a further procedure at The Alfred in which he probed the fistula, dissecting it, and a diathermy of the epithelial tract, before closing the musculature with a mucosal flap.
27 Initially the repair was effective and the plaintiff understood from the EUA undertaken by Mr Wale at the Hospital on 16 March 2010, that no further intervention was thought to be required. Despite that, the plaintiff continued to have quite high levels of pain, although she was assured by Mr Wale that that would gradually settle down.
28 On examination on 18 May 2010, Mr Wale ascertained the repair previously undertaken had broken down, and advised that the plaintiff would need further surgical treatment and also medication to soften her faeces in the interim.
29 The plaintiff next underwent surgery with Mr Wale on 25 October 2010 at The Alfred, where she underwent a formal exploration of the rectovaginal fistula, and Mr Wale performed a three-layered repair using an anal lateral advancement flap in an attempt to finally resolve the problem.
30 Unfortunately, with the passage of time, it was ascertained that procedure, as with others, had been unsuccessful and there was further faecal vaginal discharge.
31 The next attempt at fistula repair was by Mr Wale, again at The Alfred on 30 May 2011. Again, this repair attempt was unsuccessful, and in the period subsequent thereto, the plaintiff had further problems with the discharge.
32 The plaintiff underwent a surgical day procedure under anaesthetic by Mr Wale in December 2011. The plaintiff does not believe any further fistula repair was then attempted and an appointment was made to see Mr Wale on 21 February 2012.
33 The plaintiff saw Mr Wale on that date. He carried out a further examination. His only advice to the plaintiff was to come back and see him in July 2012.
34 The plaintiff had made an appointment to see Dr Ferguson on 28 February 2012 to obtain more painkillers. At that appointment, he told her he had been talking to Mr Wale and that he thought she needed to have a colostomy bag and he would talk to her more about it when she saw him at the beginning of July 2012. The plaintiff was told she could have to wear the bag for six to twelve months. Dr Ferguson told her to keep taking Panadol Osteo for the pain.
35 The plaintiff deposed her case had been a long and difficult one and she believes, even now, having regard to the fact that her fistula has not been effectively treated, the case would not be ready to proceed to trial.
36 The plaintiff believes her solicitors had been able to obtain the notes from all doctors who have been involved in her treatment, and to the best of her knowledge, all practitioners are still alive and are available to give evidence. Because of the existence of those contemporaneous notes, the plaintiff does not believe the defendant would be prejudiced in defending the proceeding when it comes on for trial.
37 The plaintiff believes that she was not diagnosed with the condition which is the subject of this proceeding until she consulted Dr Francis during 2005. Her legal advice was to await stabilisation of her condition, but as this never occurred, proceedings were issued by Writ filed on 11 May 2010.
38 The nature of the plaintiff’s condition and lack of stabilisation has also meant that her assessment by the Medical Panel did not take place until 28 July 2011 and the Panel gave its reasons and certificate that she satisfied the provisions of the Wrongs Act on 18 October 2011. As the plaintiff understood it, she would have been precluded from recovering pain and suffering damages any time prior to that assessment.
39 For her part, the injuries which the plaintiff has sustained have had a very significant impact on her life. She is in constant pain and requires the use of morphine in the form of Endone, as well as Panadol Osteo.
40 Until the plaintiff’s operation in December 2011, over an extended period of time she took a laxative-type treatment to assist with the softening of her faeces. To the present day, she continues to be troubled with problems of vaginally passed faeces. She believes further treatment lies ahead for her.
41 The plaintiff’s ability to engage in sexual relations has been very considerably disrupted, to the extent that vaginal intercourse with her husband has ceased altogether. Overall, there has been a significant impact upon her life resulting from the injuries sustained.
42 The plaintiff swore a further affidavit on 19 September 2012.
43 The plaintiff deposed that Mr Wale performed a colonoscopy on 28 August 2012 to further investigate her rectovaginal fistula. The plaintiff’s understanding was that the procedure performed was to investigate the current condition of the fistula with a view to determining a point at which a further surgical procedure, which she understood would involve the use of the colostomy bag, might be performed. Mr Wale gave the plaintiff a copy of the colonoscopy report which was exhibited to her affidavit.
44 The plaintiff deposed that she believes the injury, loss and damage flowing from the negligence alleged in this proceeding remains incomplete down to the present time and that her case would not have been brought on for trial even by this time by reason of the failure to achieve resolution and stabilisation of her medical condition.
45 To the best of the plaintiff’s knowledge and belief, she is facing at least two further major surgical procedures, one of which will involve the siting of a colostomy bag for the purposes of removing pressure on the fistula and enabling the fistula to gradually heal, following failure of repeated surgical procedures directed to that end.
46 The further procedure will involve the removal of the colostomy bag and re‑establish normal function in the plaintiff’s colon and bowel hopefully, following the resolution of the healing of the fistula.
47 Only at that point in time does the plaintiff believe that a trial would be capable of being conducted with a view to fully assessing the damages for pain and suffering and loss of earning capacity flowing from the negligence alleged.
Cross-Examination
48 The plaintiff was asked a number of questions about her memory of the delivery and whether she had an anaesthetic or stitches at that time. She confirmed she had seven stitches. She had no bowel problems at the Hospital[1] and she was not checked on discharge despite what the notes said.
[1]Transcript (“T”) 21
49 The plaintiff agreed she had a six-week check up on 9 March 1999. At that time, she told a doctor at the Hospital that there was an odour, which she was advised would go when the stitches were dissolved. She agreed she was told at the time that everything was healthy.
50 The plaintiff attended her general practitioner in October 1999 and asked for the Pill. She had then started having sex with her husband. She was still pretty sore. She made no complaint of a discharge as she did not notice it then.[2]
[2]T31
51 The plaintiff attended the Hospital on 15 April 2000 complaining of diarrhoea. She did not know anything about a form completed at that time in which a box was ticked “no” in response to a question about her having incontinence or bowel problems at that time.[3] That answer was not correct as she had the discharge at that time. Further, the form was incorrect as it set out the plaintiff did not suffer from bronchitis when in fact she did.
[3]T33
52 The plaintiff confirmed she first experienced the discharge and reported it to a doctor in April 2000.[4] When the plaintiff tried to explain to her doctors her problem when wiping herself after going to the toilet, they just kept telling her it was diarrhoea. That was the case until the plaintiff saw Dr de Groot in November 2001.[5]
[4]T34
[5]T35
53 Dr de Groot did not actually take the plaintiff’s complaint seriously. He said it was an infection and gave her Canesten. The plaintiff disagreed that she told him that she had not had any problems since the delivery as he recorded.[6] He told her to come back to see him in two weeks and he would check for thrush. He did not say he would do a pap smear on that next visit.
[6]T36
54 The plaintiff agreed that she told Dr de Groot of the problems with wiping. He asked if she had stitches in the delivery, but he did not say anything about a connection between the discharge and stitches.[7] The plaintiff did not know that she was then thinking there was a connection between the two.[8]
[7]T39
[8]T40
55 The plaintiff was taken to the history given by her to the Medical Panel in 2011 that by 2001 she had pain with intercourse, frequent urinary tract infections and a discharge. She could have told the Panel the discharge started in 2000 or 2001. She did not notice any soiling in the week or month after the delivery.
56 The plaintiff was asked about seeing Dr Haverfield at the Northern on 18 February 2006, not long after Dr Francis had told her she had a fistula. Dr Haverfield took a history of soiling soon after delivery. The plaintiff confirmed there was first discharge before she went to the Hospital in April 2000.
57 When the plaintiff was told Dr Francis also dated the onset of discharge to 1999, the plaintiff said she could not remember telling him she had the problem at that stage.[9]
[9]T45
58 The plaintiff agreed that she had a concern about the discharge from April 2000 to November 2001. Dr de Groot did not give her an explanation – “He only had a quick look and he said to me that it was thrush or an infection”.[10] She disagreed Dr de Groot organised a pap smear in November 2001.
[10]T46
59 The plaintiff could not remember ringing the Medical Centre on 5 December 2001 as Dr de Groot noted, saying there had not been any more trouble with her faeces.
60 The plaintiff was asked about a number of attendances at the Medical Centre during 2002. Whilst the notes made no mention of a complaint of discharge, the plaintiff did tell Dr De Groot about it. He gave her the cream in 2001 and told her to keep buying it over the counter.
61 In September 2003, the plaintiff attended the Medical Centre requesting the Pill. An arrangement was made for a pap smear in November 2003 but the plaintiff did not attend.
62 In mid 2004, the Medical Centre asked the plaintiff to come in for a pap smear. The plaintiff attended on 19 August 2004. She was seen by Dr Ferguson, who noted the plaintiff was very tender and it looked like thrush. The pap smear was not done.
63 The plaintiff denied this was the first time thrush had been mentioned. It was discussed earlier in 2001 when she was told her problem was thrush or an infection.[11]
[11]T55
64 The plaintiff denied this was the first time Canesten was suggested and that Dr Ferguson said to her in August 2004 to keep using it.
65 The plaintiff was asked about an attendance with Dr Ferguson in March 2005. His note of that visit set out a complaint of discharge and mention of a vaginal delivery. The plaintiff agreed that when she had a discussion about the delivery in connection with the discharge it was because she probably thought there was some connection between the two. She agreed this was also the case when she saw Dr de Groot in November 2001.[12]
[12]T58
66 The plaintiff agreed that must have been a very worrying view and it would suggest there was something really abnormal about the delivery.
67 The plaintiff said to Dr Ferguson: “… it just seems to keep going on and on”,[13] and she really wanted it fixed in March 2005. There was then a six-month delay in seeing a specialist because the plaintiff could not get an appointment with Dr Francis in October 2005.
[13]T59
68 After that consultation with Dr Francis, he suggested surgery, which was undertaken on 7 November 2005. Following that procedure, Dr Francis told the plaintiff she was in serious trouble, she had a fistula and she would need to make an appointment to go back and see him.[14] He demonstrated her problem on a drawing.
[14]T63
69 The plaintiff agreed Dr Francis also raised with her some questions about a legal claim and suggested she see a lawyer, which she did afterwards.[15] He gave the plaintiff an explanation for what had been causing her to have the discharge.
[15]T64
70 The plaintiff then saw Ms Toop. She was told by Ms Toop that she would get the notes and for her to complete treatment before she could take the case much further. Ms Toop kept saying she could not take the case much further until treatment had finished.
71 The plaintiff agreed Ms Toop told her she was worried about the time factor.[16] Ms Toop told her it would be a sensible thing to begin a claim even though the plaintiff’s treatment had not been finished to protect her position on time.
[16]T66
72 The plaintiff told Ms Toop to take whatever steps were necessary to protect her position on time. The plaintiff instructed her to commence a proceeding in November 2005 as a matter of urgency.[17]
[17]T67
73 Ms Toop told the plaintiff she was working on her case from 2005 to 2010. The plaintiff did not ask her whether she had commenced a proceeding. Ms Toop was her solicitor and the plaintiff trusted her to do her work. The plaintiff was not surprised when she was told by Ms Toop the writ was issued in May 2010.[18]
[18]T67
74 The plaintiff confirmed she left the matter with Ms Toop and she did not chase up Ms Toop’s progress in obtaining her medical records. The plaintiff also saw Mr Gleeson in Ms Toop’s office.
75 Ms Toop told the plaintiff that when she received the Hospital file she would let her know. The plaintiff did ask Ms Toop what was taking so long, and she said she was waiting. The plaintiff thought, “… well, she’s a … lawyer, that’s her job. So, just wait”.[19] The plaintiff had not been to court before so she did not have a clue.[20]
[19]T75
[20]T75
76 The plaintiff disagreed it would have been sensible to see another lawyer or take some other step because Ms Toop was trying to do her job[21] – “She was trying her best.”[22] The plaintiff explained she was not in the legal group – she had no idea.[23]
[21]T78
[22]T79
[23]T78
77 The plaintiff was on the waiting list for two years for surgery at the Northern. During that time she telephoned the Northern to see what was happening and she was advised her name was not on the list.[24] She ended up telling her doctor of the delay and he followed it up with the Northern.
[24]T77
78 The plaintiff confirmed she had been told her condition had not stabilised. Mr Wale advised her about her current condition as she described in her supplementary affidavit. The plaintiff described in further detail her understanding of what future treatment is envisaged, particularly in relation to the colonoscopy bag.
79 The plaintiff confirmed that she initially had been told she had an infection. She agreed the Canesten was not helping but she did not go to another doctor because she was happy with her current doctor and thought she would get the same advice somewhere else.[25]
[25]T79
80 In re-examination, the plaintiff said that in later visits with Ms Toop she was told about time limits, probably in about 2006. Ms Toop said within the six years.[26] After that discussion, Ms Toop told the plaintiff the treatment would have to be completed before she would be able to take the case much further.[27]
[26]T82
[27]T84
81 The plaintiff denied that at the time of the November 2005 surgery she had any knowledge of complications which may arise in the longer term from that initial treatment.[28]
[28]T87
82 The plaintiff thought the fistula would have been repaired earlier on,[29] and that she would have been alright. She did not know she was going to be up for all those operations.[30] Before Mr Wales’ first procedure in 2009, the plaintiff thought she would have the surgery done and a couple of months later she would be fine.[31]
[29]T87
[30]T87
[31]T87
83 From 2000 onwards there was the discharge. The plaintiff thought “something was wrong with my butt.”[32] She was using the cream two to three times a week because she was told she had an infection in her vagina. She did not know she had a fistula.[33]
[32]T88
[33]T89
84 The plaintiff first had the knowledge of the risk that the fistula might keep breaking down after the second repair in February 2010.[34]
[34]T90
The Law
85 The first issue for consideration is that of discoverability which is antecedent to an extension application pursuant to s27K of the Act.
86 Section 27D(1)(a) of the Act provides that the proceeding is within time if commenced within the period of three years from the date on which the cause of action was discoverable by the plaintiff.
87 Section 27F sets out the date of cause of action is discoverable:
“27F Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4)To remove doubt, a cause of action that arises under Part III of the Wrongs Act 1958 is not discoverable before the date of death of the deceased.”
88 The defendant in this case, by its Amended Defence of 12 January 2012, pleaded the cause of action was discoverable more than three years before the proceeding commenced and the plaintiff is barred pursuant to s27D of the Act.
89 As Kaye J said in Donmez v Neissa:[35]
“… in order to establish the defence, pleaded by the defendants, under s 27D(1) of the Act, the defendants must prove, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 18 December 2005, each of the three matters specified in s 27F(1)(a)–(c). The legal onus of proof should not, of course, be confused with the evidential onus,5 which may well require that, in a case such as this, the plaintiff introduce evidence as to what he or she knew, or ought to have known, in relation to each of the three matters specified in s 27F(1). However, in determining this application, it is necessary to bear in mind that the legal onus of proof, in relation to each of those matters, rests on the defendant.”[36]
[35][2012] VSC 73
[36]at paragraph [33]
(a) the fact that the death or personal injury concerned has occurred
90 It was submitted on the plaintiff’s behalf that she attained knowledge most probably in or about late 2005 or early 2006 when the following events occurred, namely:
(a)on 7 November 2005, when Dr Francis performed a procedure under anaesthetic identifying a rectovaginal fistula;[37]
(b)on 9 November 2005, when Dr Capes-Baldwin appears to have suggested the plaintiff seek legal advice but she was not overly phased and would be happy to have her problem fixed;[38]
(c)on 11 November 2005, when Dr Francis recorded confirmation of the rectovaginal fistula;[39]
(d)on 18 November 2005, when Dr Francis also discussed with the plaintiff the obtaining of legal advice;[40]
(e)on 23 November 2005, when the plaintiff initially saw Ms Toop, solicitor, who advised it was necessary to obtain records and complete treatment before the case could be reopened[41] and in late 2005/early 2006, Ms Toop commenced to obtain records; and
(f)on 24 February 2006, when Dr Francis reported “sending forms”, which may be inferred to be clinical records, to Ms Toop.[42]
[37]Exhibit LMRS6 - affidavit of Lisa Ridd sworn 23 March 2012
[38]Exhibit LMR8
[39]Exhibit LMR7
[40]Exhibit LMR9
[41]Exhibit LMR2 from the second affidavit
[42]Exhibit LMR12
91 It was submitted that prior to those specified events, the plaintiff was travelling under a misapprehension she was suffering from an infection of some order, because she was told that by her general practitioner and advised to use Canesten cream as required.
92 In her viva voce evidence, the plaintiff said she had been aware earlier of an irregular vaginal faecal discharge, but it was submitted on her behalf that she did not know she suffered personal injury until that injury was later identified.
93 It was submitted the Court should have regard to the difficulties faced by Ms Toop as she commenced her investigation and how this impacted on the plaintiff’s knowledge. The diary note of 23 November 2005 referred to instructions that the plaintiff had been referred by Dr Francis to Dr Haverfield.
94 The plaintiff’s affidavit of 6 March 2012 contained the next link. She was referred by Dr Ferguson to the Northern, where she consulted Mr Bui, colorectal surgeon, in early March 2006. He repeated the laparoscopy procedure undertaken by Dr Francis and said he could find nothing wrong with the plaintiff’s bowel, and thought she needed a hysterectomy.
95 Mr Bui referred the plaintiff to a gynaecologist, Dr Haverfield, and in the meantime she was placed on a waiting list for surgery at the Northern in March 2006, and between that time and the further contact by Dr Ferguson at the Northern following a delay of more than two years, the plaintiff’s evidence was that she had rung the Northern on two or three occasions in 2007, but obtained unsatisfactory responses.
96 It was submitted that Ms Toop would inevitably have been hamstrung during this period and the plaintiff’s knowledge likewise, because the circumstances of the plaintiff’s condition remained uncertain and, further, following Mr Bui’s advice, even the diagnosis of the condition was uncertain.
(b)the fact that the personal injury was caused by the fault of the defendant
97 Section 27F(1)(b) of the Act is concerned with what the plaintiff knew, or knows, or ought to have known, in relation to the injury being caused by the fault of the defendant.
98 It was submitted the plaintiff could not have known in the circumstances, and ought not to be held to have known that within the relevant period she suffered an injury caused by the defendant’s fault. She had been told on the one hand she had a fistula, but on the other hand she did not, and required a hysterectomy. It was submitted there was no evidence that there was any basis for knowledge on her part or that she ought to have had such knowledge of fault.
99 Reference was made to the decision of Kaye J in Spandideas v Vellar,[43] where his Honour set out he did not consider the section required the plaintiff should form a legal judgment as to the “fault” of the defendant in a tortious sense. The sub-section fixed on –
“… the knowledge of the plaintiff (or the circumstances that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done”.[44]
[43][2008] VSC 198
[44]Spandideas v Vellar (supra) at paragraph [35]
100 It was submitted there was no evidentiary basis, the burden being on the defendant, for the Court to find the plaintiff knew or ought to have known of “fault” by the defendant. She had no knowledge that the procedure which had caused her injury should not have been performed, or should have been done differently.
101 It was submitted that for the purposes of ss(b), the fault of the defendant was not known or ought to have been known by the plaintiff within the relevant period.
102 It was submitted the Court should be wary of viewing the plaintiff’s state of knowledge at the relevant time with the benefit of hindsight:
“(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.”
103 It was submitted on the evidence that the Court should conclude that it was not until the plaintiff commenced treatment with Mr Wale at The Alfred that she had knowledge as to the seriousness of her condition.
104 The plaintiff said that before she had her first procedure to try and repair the fistula, she thought she would go in, have the surgery done, and a couple of months later all would be fine.[45]
[45]T87
105 The plaintiff said that she first had any knowledge of the risk the fistula might keep breaking down after the second operation with Mr Wale in February 2010.[46]
[46]T90
106 It was submitted that the plaintiff’s evidence was consistent with her evidence right back to November 2005, when Dr Capes-Baldwin recorded she was not overly fazed with this and expressed a thought that she would be happy to have it fixed.[47]
[47]See Exhibit LMR8
107 It was submitted the plaintiff’s knowledge of the seriousness of her injury should be equated with her perception, viewed prospectively as opposed to using hindsight, and that it was only when the problem was not fixed that she realised she had a personal injury sufficiently serious to justify the bringing of an action.
108 In that regard, it was submitted it was to be noted that shortly following the second procedure performed by Mr Wale in February 2010, the Writ was filed on 11 May 2010.
109 It was submitted that prior to that time, the plaintiff was travelling under the belief, even allowing for the fact that Mr Bui misdiagnosed the need for a hysterectomy, that she suffered an injury in the form of a fistula which would require a simple surgical repair, and until the failure of that simple surgical repair when her problem was not fixed, she lacked the necessary knowledge, or means of knowledge, for the purposes of s27F(1)(c) of the Act.
110 In terms of s27D of the Act, it was submitted that for the purposes of ss(1)(a), the Writ was filed within the relevant limitation period because it was filed within a period of three years from the date on which the cause of action was discovered by the plaintiff in terms of each of the three facts identified in s27F(1) of the Act.
111 In its Amended Defence dated 5 January 2012, the defendant pleaded the cause of action alleged in the plaintiff’s Statement of Claim was discoverable more than three years before this proceeding was issued on 11 May 2010 and is barred by the operation of s27D of the Act.
112 The defendant’s solicitor, Lisa Ridd, swore an affidavit on 23 March 2012 in which she deposed that the cause of action was discoverable prior to 11 May 2007 because:
· At a Medical Panel examination on 9 June 2011, the plaintiff stated, inter alia, that by 2001, she had begun to experience a discharge which she felt was feculent in nature. Further, at that examination, she believed the plaintiff advised, inter alia, that in 2005, she had been advised by a gynaecologist that she had a “hole in her bowel”[48] – Medical Panel Reasons dated 18 October 2011.[49]
[48]Exhibit LMR1
[49]Exhibit LMR1
· On 22 November 2001, she believed the plaintiff consulted Dr de Groot, at which time the plaintiff advised him, after wiping herself, that she was finding faeces coming from her vagina and she had stitches inserted there following her son’s delivery.[50]
[50]See Exhibit LMR2 - Dr de Groot’s notes of consultation with the plaintiff on 22 November 2001
· On 30 March 2005, she believed the plaintiff consulted Dr Ferguson and reported to him she had “faeces” when she wiped her vagina after passing urine.[51]
[51]See Exhibit LMR3 - Dr Ferguson’s note, dated 30 March 2005
· On 7 April 2005, Dr Ferguson wrote a letter of referral to Dr Francis, gynaecologist, noting that the plaintiff had “… a brown (? Faecal) vaginal discharge”.[52]
[52]See Exhibit LMR4 - Letter of referral from Dr Ferguson to Dr Francis dated 7 April 2005
· On 25 October 2005, Dr Francis noted that the plaintiff was suffering from symptoms of a rectovaginal fistula dating from the birth.[53]
[53]See Exhibit LMR5 - Letter from Dr Francis to Dr Ferguson dated 25 October 2005
· On 7 November 2005, she believed the plaintiff underwent an examination under anaesthetic performed by Dr Francis, during the course of which a rectovaginal fistula was confirmed.[54]
[54]See Exhibit LMR6 - Dr Francis’ notes regarding the examination of that date and letter written by Dr Francis to Dr Ferguson of 11 November 2005
· On 9 November 2005, the plaintiff attended Dr Capes-Baldwin, general practitioner, and he noted then, inter alia, in his notes of that date:[55]
[55]Exhibit LMR8
“… Raised the issue of precipitating cause of fistula and possible relation to peri-partum. Had not considered it an issue to seek advice. Raised the thought that sometimes worth considering legal opinion. Judy wasn’t overly phased (sic) with this and expressed a thought that she would be happy to have ‘it fixed’.”
· On 18 November 2005, she believed the plaintiff consulted Dr Francis, during which time the legal aspects of her rectovaginal fistula were discussed.[56]
[56]See Exhibit LMR9 - The notes of Dr Francis at the consultation on 18 November 2005
· On 9 December 2005, Dr Francis noted the name Patsy Toop and that she was a solicitor, and identified her contact details.[57]
[57]Exhibit LMR10
· On 18 February 2006, she believed the plaintiff was seen by Dr Haverfield, gynaecologist, at the Northern, and at that consultation the plaintiff advised him that following the rectovaginal repair, she had noted faecal soiling in the post-partum phase.[58]
[58]See Exhibit LMR11 - Copy of the letter by Dr Haverfield to Dr Francis dated 1 April 2006 outlining, inter alia, his assessment of the Plaintiff on 18 February 2006
· On 24 February 2006, she believed Dr Francis forwarded forms relative to the plaintiff to Ms Toop.[59]
· On 3 March 2006, Dr Francis noted the plaintiff had been referred for pelvic pain and faecal discharge for seven years and that a rectovaginal fistula had been diagnosed.[60]
[59]See Exhibit LMR12 - Notes relating to the Plaintiff dated 24 February 2006
[60]See Exhibit LMR13 - Letter from Dr Francis to Mr Bui dated 3 March 2006
The Defendant’s Submissions
113 The defendant agreed with the plaintiff’s submission that the defendant carries the burden of proof, but not the whole evidentiary burden with respect to both s27D and s27F of the Act.
114 For the purposes of s27F, it was submitted that more than three years had elapsed before the proceeding was issued from the time the plaintiff knew or ought to have known of the factors set out in (a) to (c).
115 It was submitted that the evidence established the limitation period commenced shortly after November 2001, or in the alternative, no later than November 2005. On both scenarios, the proceeding was issued out of time.
116 It was submitted that s27F requires an examination not only of actual knowledge, but what the plaintiff ought to have known. That normative requirement must be considered by reference to ss2, namely, whether the relevant fact would have been ascertained if the plaintiff had taken all reasonable steps before that to ascertain that fact. That involved taking into account subjective factors such as the age, characteristics, education and physical psychological state of the plaintiff.[61]
[61]See Spandideas v Vellar (supra) at 65 per Kaye J
(a) the fact that the death or personal injury concerned has occurred
117 The plaintiff was first diagnosed with a rectovaginal fistula on 7 November 2005 by treating gynaecologist, Dr Francis. It is conceded by the plaintiff for the purposes of this sub section that she knew she had suffered personal injury at or about late 2005 or early 2006.
118 The defendant contended that the latest date at which the plaintiff knew that she had suffered personal injury was 18 November 2005 when Dr Francis explained to her, with the aid of a diagram, what had happened, and informed her of the need for surgery and advised her to seek legal advice.
119 However, the plaintiff had been suffering symptoms of faecal discharge through her vagina for more than five years before that consultation. She gave evidence of the discharge commencing in April 2000 and that she endured it “every time I went” from April 2000 right through to 2005 and beyond.[62] Further, from April 2000 and leading up to the consultation, the plaintiff stated her symptoms, if anything, became worse and worse.[63]
[62]T88
[63]T79
120 When asked in re-examination what she thought was wrong with her during 2000 to 2005, the plaintiff stated, “I thought something was wrong with my butt”.[64]
[64]T88
121 Whilst it was submitted that the plaintiff was travelling under a misapprehension of suffering an infection of some order, the defendant submitted that was not her viva voce evidence. It was clear from her evidence that she did not consider an infection or thrush was the cause of faecal discharge.[65] Rather, she considered that there was probably some connection between what had happened with the delivery and her ongoing symptoms of discharge. It was very worrying and suggested to her there was something really abnormal about what happened at the delivery.[66]
[65]T55
[66]T58
122 It was submitted for those four factors: namely, suffering discharge every time she went to the toilet from April 2000; the belief something was wrong with her butt; the belief that infection or thrush was not the cause of her discharge, and her belief that since no later than November 2001 there was probably some connection between what happened at the delivery and the symptoms of discharge, the Court ought to find, for the purposes of this sub-section, that the relevant date is no later than 22 November 2001 when the plaintiff raised the issue with Dr de Groot.
123 It was submitted the likelihood of having suffered a personal injury was the only rational explanation for the chronic symptoms of discharge through the plaintiff’s vagina since April 2000 every time she went, even she did not know then what the medical diagnosis of the injury was. It is not necessary for the purposes of that sub-section that a formal correct diagnosis be made for a plaintiff to have knowledge he or she suffered personal injury.[67]
[67]See Commonwealth of Australia v Shaw [2006] NSWCA 209 at 28
124 Further, in the alternative, it was submitted that because of those four factors, the plaintiff, in taking all reasonable steps to ascertain the fact she had suffered personal injury,[68] ought to have obtained further medical review whether with her doctors, with alternative general practitioners, if her own general practitioners were not taking her seriously, or specialist review of her condition in 2000 and 2001, rather than permitting the status quo to persist until April 2005, when she finally got a referral from her general practitioner to Dr Francis. It was submitted that if the plaintiff had done that, the diagnosis of her injury, namely a rectovaginal fistula, would have been made by 31 January 2002 at the latest, rather than in November 2005.
[68]See ss27F(2)
125 Insofar as the plaintiff seeks to explain the delay in seeking specialist review by contending that the medical advice she received between 2000 and 2005 was that it was “just diarrhoea” or infection and/or thrush, and that she did not seek alternative opinion because she would just hear the same thing and she was happy with her own doctors, despite her belief they were not taking her seriously and Canesten was not effective, it was submitted that although these factors may be relevant in the extension of time application,[69] they were not matters of sufficient weight to displace the conclusion, which it was submitted the Court ought reach, that the taking of all reasonable steps to ascertain the nature of her personal injury would have promptly led the plaintiff to the medical diagnosis of a fistula in or about late January 2002, rather than in November 2005.
[69]See ss27L(g)
126 The defendant acknowledged that the plaintiff was tolerant and accepting by disposition and had not the benefit of a high education and reposed a high degree of trust in professionals. Nevertheless, her reported level of worry about her symptoms, her view something was really abnormal about what had happened at the delivery and the fact her condition was worsening, were overwhelming reasons why, in all the circumstances, a reasonable person in her position would seek further medical advice concerning her condition.
(b)the fact that the personal injury was caused by the fault of the defendant
127 In ss(b), the meaning of the word “fault” bears its ordinary and natural meaning, namely, an act or omission to which some culpability or blame attaches.[70]
[70]See Delai v Western District Health Service & Anor [2009] VSC 151 at 14, per Beach J, and Spandideas v Vellar (supra) at 34 per Kaye J
128 On 22 November 2001, the plaintiff saw Dr de Groot, her general practitioner, at Brooke Street. The note of that consultation reads:
“Pap smear.
Pathology requested (VCS) - pap smear …
S/ anxious to undergo papsmear, last one about 3y ago, after smear has been taken tells a bit confusing story about wiping herself and finding faeces coming from vagina, had stitches ‘there’ after Nathan’s delivery but never any px’s [problems] since.
P/RV in 2-52 for pap results and further examination PRN … .”
(sic)
129 The plaintiff gave evidence that before this consultation she had been trying to tell her treating doctors for over a year of her problems with discharge, but she had not been taken seriously. This was the situation with Dr de Groot on 22 November 2001, when he said it was just an infection.
130 It was submitted nonetheless, that Dr de Groot’s note indicated there was a discussion with the plaintiff at that consultation concerning a link between the symptoms she was describing and the stiches received after the delivery. Although the plaintiff disputed there had been any such discussion and stated at that time she did not know if there was a possible connection between the stitches and the problem she was telling Dr de Groot about,[71] the plaintiff conceded that as at November 2001, she did consider there was a connection between the delivery and her symptoms of faecal vaginal discharge and it suggested there was something really abnormal about what had happened at the delivery.[72]
[71]T40
[72]T58
131 Counsel for the defendant submitted that as at that November 2001 visit when the plaintiff raised the possible connection, she understood not only had she suffered a personal injury, but that the injury was relatable to an act or omission of the defendant connected with the management of the delivery.
132 As previously stated, the plaintiff gave evidence she was told by Dr Francis on 7 November 2005 that she had a fistula. Further, when she went back to see him on 18 November 2005, he gave her a long explanation about what a rectovaginal fistula was, advised her she would need further surgery and raised some question about a legal claim on her behalf and suggested she should go and see a lawyer. On that day, Dr Francis also explained, by drawing, what had been causing her to pass faecal material through her vagina over a long period.[73]
[73]Exhibit LMR2 to the second affidavit – Memorandum of attendance with the plaintiff prepared by Ms Toop on 23 November 2005.
133 Counsel for the defendant submitted that as of 18 November 2005, with Dr Francis having told the plaintiff of the diagnosis and having explained to her the nature of the injury and his view it was relatable to an act or omission on the part of the defendant such that she ought to have obtained legal advice in connection with it, the plaintiff was possessed of actual knowledge of fault for the purposes of (b).
134 Whilst it was submitted on the plaintiff’s behalf that she had no knowledge about the procedure which caused her injury should not have been performed or should have been done differently, that was contrary to her evidence, having drawn a connection between the management of her delivery and the discharge as at November 2001.
135 Having not served any expert opinion on liability, it was submitted it was not surprising the plaintiff was able to submit that she had no knowledge. However, that knowledge goes to tortious fault, not to the test which applies by reason of Spandideas v Vellar.[74]
[74](supra)
136 Further, it was submitted, having regard to the plaintiff’s evidence that as at November 2001 she did consider there was a connection between her delivery and her symptoms of discharge, and it was suggested there was something really abnormal about what happened at the delivery, it was submitted that had the plaintiff taken all reasonable steps in late 2001/early 2002 to ascertain the facts prescribed by (a) to (c), she would have been apprised of the requisite knowledge of fault shortly after November 2001.
(c)In the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action
137 Insofar as the plaintiff’s submissions appear to contend that requisite knowledge required knowledge on the part of the plaintiff of the full extent of the seriousness of her injury, it was submitted that contention was incorrect. It was submitted, rather, all that was required was knowledge (actual or constructive) that the injury was sufficiently serious to justify bringing an action on the cause of action.
138 As previously set out, the plaintiff knew:
(a)the symptoms of discharge commenced in April 2000 and she endured them every time she went from then to 2005 and beyond;[75]
(b)from April 2000 and leading up to the consultation with Dr Francis in November 2005, the symptoms became worse and worse;[76]
and further:
(c)over 2000 to 2005, the treatment with Canesten had not been effective;[77]
(d)the plaintiff was told by Dr Francis on 7 November 2005 that she had a fistula and was in serious trouble;[78]
(e)on 18 November 2005, Dr Francis told her she needed further surgery, raised some questions about a legal claim and suggested she should see a lawyer;
(f)according to the memo of the attendance with Ms Toop on 23 November 2005, the plaintiff was then aware that she was in for “the first of a long series of operations that were going to take place to try and repair this problem”;
(g)by November 2005, the plaintiff had instructed her solicitors to act on her behalf to investigate a claim in medical negligence against the defendant;[79] and
(h)in November 2005, she instructed them to issue proceedings against the defendant and if required, to do so urgently.[80]
[75]T88
[76]T79
[77]T79
[78]T63
[79]T65
[80]T66
139 It was submitted that viewed prospectively, as agitated by the plaintiff’s counsel, the knowledge of the above facts as at November 2005 constituted the requisite knowledge on the plaintiff’s part that the injury was sufficiently serious to justify bringing an action on the cause of action.
140 Reliance was also placed by the defendant on the Medical Panel’s decision that the plaintiff suffered from persistent vaginal deformity, dysfunction and scarring and persistent rectal anatomical alteration with occasional disturbance of bowel function, moderate pain and scarring treated surgically.
141 The Panel determined that the injuries resulted in an impairment that exceeded the threshold applicable for significant injury and found the degree of impairment was unlikely to alter to any significant degree and therefore the condition was stabilised. While those findings related to the plaintiff’s condition after November 2001 or 2005, the Panel’s findings did indicate the likelihood the injury had at all times been a serious one.
142 It was submitted those matters indicated it was not correct to assert that it was only when she realised the repair surgery did not fix the problem, that the plaintiff first appreciated the seriousness of her injury. While it might be the case that that failure elevated the seriousness, it was submitted on the defendant’s behalf that well before any rectification surgery and in November 2001 or at the latest November 2005, the plaintiff was aware her condition was sufficiently serious to justify to the bringing of an action. This was confirmed by her seeking legal advice in November 2005.
143 It was also noted the plaintiff had not served any medical expert opinion to support the submissions regarding stabilisation.
144 The defendant submitted, had the plaintiff taken all reasonable steps in late 2001 to ascertain the facts prescribed by (a) to (c), a similar course of events as to what occurred from November 2005 in terms of specialist review, diagnosis, engagement of solicitors and surgical intervention would have likely occurred and the plaintiff would have been appraised of the requisite knowledge of all the facts prescribed by s27F(1)(a) to (c) fault in November 2001 or shortly thereafter and no later than 31 January 2002, allowing for some additional delay due to the Christmas holidays.
Overview
145 I found the plaintiff to be a truthful, straightforward witness who answered questions as best she could in relation to many very personal and embarrassing issues. There was no significant challenge made to her credit by counsel for the defendant.
146 I am satisfied, as her counsel conceded, that the plaintiff knew that personal injury had occurred when the fistula was identified in November 2005.
147 On 7 November 2005, Dr Francis performed a procedure under anaesthetic identifying a rectovaginal fistula[81] and on 11 November 2005, he recorded confirmation of that diagnosis.[82] A week later, Dr Francis also told the plaintiff she was in serious trouble with a fistula. He advised of the need for surgery and suggested she see a lawyer.
[81]Exhibit LMRS6 - affidavit of Lisa Ridd sworn 23 March 2012
[82]Exhibit LMR7
148 I accept that prior to those events specified above, whilst the plaintiff was aware earlier of the discharge, she was travelling under a misapprehension she was suffering from an infection of some order, as she was advised by her general practitioner and advised to use cream when required.
149 I do not accept the plaintiff possessed the requisite knowledge under ss(a) in November 2001 when she saw Dr De Groot, as counsel for the defendant submitted.
150 In any event, counsel for the defendant conceded[83] that it was recognised in comparison to the arguments about 2005, the arguments for the earlier period were “less robust”.
[83]T130
151 Further, I do not accept that the plaintiff ought to have known she had suffered injury at the earlier date. I accept that the plaintiff is a particularly unsophisticated woman with little knowledge or understanding of medical matters and anatomy. She relied upon the advice of her general practitioners, who told her the discharge was an infection or thrush, and she took the cream as suggested, although it was ineffective in treating the condition.
152 I accept the submission that it was going too far to suggest the plaintiff step behind the medical advisers she trusted to seek an alternate medical diagnosis.[84]
[84]T109
153 Further, I do not accept that prior to the diagnosis of the fistula in November 2005, the plaintiff knew there was a link between discharge and delivery, as her somewhat confused answers in cross-examination suggested.
154 There has been no suggestion in this case that the plaintiff was a witness who should not be believed or accepted at any level.
155 Whilst there was no mention of thrush or Canesten in the Medical Centre file until August 2004, I accept that between 2001 and 2005, the plaintiff thought she had an infection or thrush for which Canesten had been suggested, and it was not until the diagnosis of the fistula that she became aware of the fact that personal injury had occurred.
156 I also find that the plaintiff knew that the personal injury was caused by the fault of the defendant in November 2005.
157 Whilst on examination on 21 November 2001 Dr Groot noted the problems wiping and the fact the plaintiff had stitches in the delivery, I do not accept that as at that date, the plaintiff knew or ought to have known the discharge was the fault of the defendant.
158 I make a similar finding in relation to the examination with Dr Ferguson in March 2005.
159 I am not satisfied that until the attendance on Dr Francis on 18 November 2005, when he drew the diagram explaining the fistula and its cause and suggested to the plaintiff she seek legal advice, that she had the necessary knowledge that her injury was caused by something that had been done or not been done properly by the defendant.
160 I do not accept any confusion on the plaintiff’s part that she was put on a waiting list for a hysterectomy in 2006 detracts from her knowledge of the fistula and its connection with the delivery in November 2005.
161 Whilst the plaintiff deposed to the procedure with Dr Bui in March 2006 after which he advised her he could find nothing wrong with her bowel and thought she needed a hysterectomy and placed her on a waiting list for that procedure, the Northern file [85] indicates that the plaintiff was in fact put on a waiting list in Match 2006 for procedures related to the discharge – not for a hysterectomy as she understood.
[85]Exhibit LMR7- second affidavit- Northern file
162 It was later in February 2009, following a colonoscopy that Mr Bui advised there was no sign of a fistula and the plaintiff was told there could be some ovarian pathology, that Mr Bui referred the plaintiff to gynaecologist, Dr Haverfield.
163 I also find that the plaintiff knew the injury was sufficiently serious to justify the bringing of proceedings on 18 November 2005 upon receipt of advice from Dr Francis. He then told her she was in serious trouble with the fistula and that she would require surgery.
164 Whilst the plaintiff’s understanding of what further surgery was required may have been inaccurately reported when she first saw Ms Toop in November 2005, the plaintiff’s evidence was clear that she knew she was in serious trouble after seeing Dr Francis on 18 November 2005.
165 Having made this finding, I do not accept that it was not until the plaintiff had commenced treatment with Mr Wale at The Alfred in late 2009 that she had the requisite knowledge pursuant to ss(c).
166 Further, as noted in my findings in relation to ss(b), the plaintiff’s mistaken belief as to the involvement of gynaecological factors does not detract from her knowledge that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
167 Having found the discoverable date was 18 November 2005, the plaintiff had three years thereafter to issue proceedings. As the Writ was not issued until 11 May 2010, the plaintiff’s cause of action is barred by s27D (1) of the Act.
168 In these circumstances, an extension of time is sought by the plaintiff.
Extension of time
169 Section 27K of the Act states:
“27K Extension of limitation periods
(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2)Subject to section 27L, the court—
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
170 Section 27L of the Act states:
“27LMatters to be considered in determining applications for extension of limitation period
(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b)the nature and extent of the plaintiff's loss; and
(c)the nature of the defendant's conduct.
(3) In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4)In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”
171 Section 27M of the Act states:
“27MEffect of expiry of limitation period prior to extension
(1)The powers conferred on a court by this Division may be exercised at any time even though—
(a)the period of limitation has already expired; or
(b)an action in respect of the death or personal injury has been commenced.
(2)Section 23A(5) applies, with any necessary modifications, to an application under this Division.”
172 In explaining the rationale for limitation periods, McHugh J said, in Brisbane South Regional Health Authority v Taylor:[86]
“For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘where there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes more often than we realise the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists … similarly it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear while based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[86](1996) 186 CLR 541
173 To succeed in her application, the plaintiff must persuade the Court that it is just and reasonable to make the order extending time – see Bell v SPC Ltd.[87] The onus is “fairly heavy” – see Richards v State of Victoria & Ors[88] per Gillard J.
[87](1989) VR 170 at 174
[88][2001] VSC 52 at paragraphs [7] and [11]
174 The Court must synthesise the considerations referred to in the section, taking account of them all, and bearing in mind that it is the plaintiff who bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[89]
[89]See Tsiadis v Patterson (2001) 4 VR 114 , 123 at 33, per Buchanan JA, with whom Ormiston and
175 Counsel for the plaintiff made submissions with respect to her application for extension of time pursuant to s27K of the Act, and more particularly the matters to be considered in determining that application as stated in s27L(1) of the Act.
176 In terms of the length and reasons for the delay on the part of the plaintiff, it was submitted the overwhelming reason for the prosecution of her claim was the failure to obtain stabilisation in her condition such as would enable the fair trial of her claim.
177 It was submitted that the plaintiff’s condition was not diagnosed until November 2005 and even then, the diagnosis was clouded by the opinion of Mr Bui, and the initial attempted surgical repair was not performed until September 2009.
178 Even to the present time, the plaintiff has had at least two substantial surgical procedures awaiting her, involving the necessity of a colostomy bag and surgical repair thereafter.
179 A number of authorities were relied upon in the submission that the failure to achieve stabilisation was a relevant factor for the Court to take into account.
180 In Callan v Healthscope Ltd,[90] Williams J found it was significant the plaintiffs did not know the extent of their son’s disability. They hoped that he would not be severely affected by his condition and Mr Callan was optimistic that would be the case.
[90][2008] VSC 88
181 In Harris (as administratrix of the estate of Hollins) v Commercial Minerals Ltd&Ors,[91] it was held that expectation as to the likely consequences of an injury was clearly an element in determining an applicant’s awareness of the extent of injury. In that case, reference was made to the decision of Australian Iron & Steel Ltd v Connell,[92] a case concerning a diseased spine, in respect of which the Court said:
“… Whether the applicant was aware of ‘the extent’ of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease.”[93]
[91](1996) 135 ALR 353, per Dawson, Toohey, Gaudron, McHugh and Gummow JJ
[92](1959) 102 CLR 522
[93]Harris v Commercial Minerals & Ors (supra) at 361
182 The Court concluded in that case that:
“As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. … .”[94]
[94](supra) at 362
183 The South Australian limitation legislation formerly was concerned with later occurring material facts. In Berriman v Cricket Australia,[95] Forrest J held that it was most significant that following shoulder surgery, the plaintiff’s condition did not improve and he had been advised further surgery was not likely to improve his condition. That seemed to his Honour to be a new material fact.
[95](2007) 17 VR 528, per Forrest J
184 Forrest J also accepted that it was at this time the plaintiff was able, as a matter of fact, to determine what were the likely consequences to him in terms of losses in the future.[96]
[96](supra) at 538-9
185 Relevant to the same legislation was Lovett v Le Gall,[97] where it was held that a case of a new material fact would be the case of a man who thinks he has only received some trifling injury and later discovers the accident has produced grave, but hitherto unsuspected, physical injuries.
[97](1975) 10 SASR 479, per Bray CJ
186 Counsel for the plaintiff submitted that over a long period, and in various circumstances, the issue of stabilisation had been relevant to the application of limitations legislation. Instability and unpredictability of the injury under consideration had been a relevant factor in determining the length of and reasons for delay.
187 To date, the plaintiff in this case has undergone approximately twelve procedures, six of which have involved surgical repair, and unsuccessful attempts to repair a rectovaginal fistula. At least two further and major surgical procedures are to come involving the positioning of a colostomy bag, and closure thereafter.
188 Pending such further surgical procedures, it was submitted any reasonable and prudent solicitor would have been foolhardy to contemplate litigating the plaintiff’s case at trial. It was submitted the prospect of further complications and failure was obvious and the ramifications upon the assessment of the plaintiff’s damages, considerable.
189 The second factor is prejudice.
190 The practitioner who performed the procedure, Dr Priest, is, on evidence before the Court, still practising and available to give evidence. No affidavit evidence has been produced from Dr Priest to the contrary.
191 The defendant’s solicitor’s affidavit seeks to claim specific prejudice on the basis that she had obtained instructions from the medical and nursing staff who cared for the plaintiff during the delivery and she believed none of those staff had a recollection of the plaintiff and the events surrounding those matters.
192 In an application such as the present, it was submitted that it was wholly inadequate for a solicitor to purport to swear as to the knowledge of such potential witnesses. It was submitted visualisation of the plaintiff or examination of contemporaneous records may well assist recollection. Further, it remained to be determined whether any such persons were, in comparison to Dr Priest, in a position to give evidence relevant to the claimed negligence during the performance of the procedure.
193 Against any suggestion of prejudice was the fact that there appeared to be a complete medical record of the plaintiff’s treatment at each and every stage over the intervening years from the time of delivery.
194 In the course of preparation for the defence, Ms Ridd had obtained records of the Hospital in relation to the plaintiff and these were exhibited.[98]
[98]Exhibit LMR3
195 In the course of preparation of the defence, Ms Ridd had subpoenaed the records of Dr Francis and they were exhibited,[99] as were those of the Medical Centre,[100] The Alfred Hospital[101] and the Northern.[102]
[99]Exhibit LMR4
[100]Exhibit LMR5
[101]Exhibit LMR6
[102]Exhibit LMR7
196 It was submitted such a complete record would also tend to mitigate against any presumptive general prejudice due to the effluxion of time by reason of the capacity of witnesses to refresh memory from contemporaneous medical notes and history. It was submitted that in the particular circumstances of this case, and further, the insufficiency of evidence adduced as to claim prejudice, that the Court should find that it was unlikely there would be prejudice to the defendant.
197 The third factor, namely steps taken by the defendant to make available to the plaintiff means of ascertaining facts relevant to any cause of action, is not relevant, nor is the fourth factor, being the duration of any disability or legal incapacity of the plaintiff.
198 The fifth factor to take into account is the time within which the cause of action was discoverable.
199 The submissions in relation to the date of the discovery of the cause of action are also relevant in the application for an extension of time.
200 Summarising those earlier submissions, the first suggestion of any legal remedy was made by a medical practitioner in November 2005 and the plaintiff saw Ms Toop later that month. That attendance did not demonstrate there was a cause of action known to exist.
201 It was submitted that Ms Toop appeared to have commenced a lengthy process of obtaining records and one would infer thereafter obtaining evidence to support a claim against the defendant. That necessarily, having regard to the complexity of the case, for example the erroneous diagnosis of Mr Bui and the delay in treatment, would have taken a considerable period.
202 It was submitted a further relevant factor to the concept of “the cause of action” was that a reasonable and prudent solicitor would be looking to ascertain the nature and extent of damage flowing from the cause of action and this, as has been submitted, remained indeterminate, even presently.
203 The sixth relevant factor is the extent to which the plaintiff acted promptly and reasonably once she knew the act or omission of the defendant to which the injury was attributable might be capable at that time of giving rise to an action for damages. The reference to knowledge in those circumstances meant actual knowledge.
204 In the context of the present case, the application of that provision required the assessment of a number of inter related factors.
205 It was submitted that once the plaintiff was aware she had a fistula, she consulted her solicitor within a very short space of time. The difficulties which then confronted the solicitor were outlined earlier.
206 Although on the facts of the present case it was submitted that the filing of a Writ in May 2010 was wholly explicable, even if it were thought there had been some delay by the solicitor in filing of a Writ at that time, it was submitted that the plaintiff was entitled to rely upon a solicitor to act upon her instructions to institute proceedings in the event that it was thought that there was a cause of action available to her and that any delay on the part of the solicitor ought not be visited on the plaintiff herself.[103]
[103] Repco Corp Ltd v Scardamaglia [1996] 1 VR 7 13 per Smith J; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 per Phillips JA at 620 to 621;Tsiadis (supra)
207 It was submitted that no inference should be drawn from the failure of Ms Toop to go on affidavit because any such inference was displaced by the extensive cross-examination of the plaintiff with respect to privileged communications with Ms Toop.
208 It was emphasised the promptitude and reasonableness of the plaintiff’s actions must be seen against the unusual factual scenario in this case, namely, that despite extensive medical treatment which she has already received, the biggest and most complex surgical procedures relevant to the assessment of her claim and the attendant risks of those procedures are yet to come. It was submitted that was the most powerful and substantive factor to be weighed on the discretionary scales, warranting the extension of the limitation period.
209 The seventh factor to be taken into account is the steps taken by the plaintiff to obtain medical, legal and other expert advice. It was submitted that the plaintiff had obtained appropriate advice but again, pending stabilisation of her condition and completion of the surgical procedures advocated by Mr Wale and rendered unavoidable by the repeated breakdown of the vaginal fistula repairs previously undertaken, the conclusion which was warranted was that such advice must necessarily remain incomplete at the present time.
210 Counsel for the defendant submitted that in considering whether to permit the proceeding to continue notwithstanding that the limitation period had expired, a primary consideration is that of prejudice.
211 The onus in terms of the effects of prejudice is an evidentiary one on the defendant. However, as the Court set out in Tsiadis v Patterson:[104]
“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”
[104] Tsiadis v Patterson (supra) at paragraph [20]
212 Here, evidence relating to the delivery relates to matters which occurred more than twelve years ago. Prima facie, that delay is long. Moreover, the defendant submitted that in the present case, prejudice flows not only from the mere effluxion of time, but also specific prejudice, in that the medical and nursing staff who cared for the plaintiff during her labour have no recollection of the plaintiff or events surrounding her labour.[105]
[105]See the affidavit of Lisa Ridd sworn 23 March 2012 at paragraph [19]
213 Ms Ridd deposed that she had obtained instructions from the medical and nursing staff who cared for the plaintiff during her delivery in relation to their memory of the plaintiff and the events surrounding her labour. Ms Ridd believed none of those staff had a recollection of the plaintiff and the events surrounding her labour and delivery.
214 Further, with the plaintiff deposing she has two further procedures to undergo, which have been described in the submissions as “the biggest and most complex surgical procedures relevant to the assessment of her claim” and the attendant risks that these procedures are yet to come, it was submitted the prospect arises that the trial may not be heard for an extended period of time and possibly years.
215 It was submitted that further delay was also relevant to the issue of prejudice, with the Court not limited by s27L to only have regard to the established prejudice but also to consider the extent to which there is likely to be prejudice.[106]
[106]See Delai v Western District Health Service & Anor (supra) at paragraph [23]
216 Further, it was submitted that delay in the order of years was inordinate and may be taken as evidence of prejudice,[107] as:
“Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss. … .” [108]
[107]See Delai v Western District Health Service & Anor (supra) at paragraph [23] and the authorities cited at footnote 50
[108]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555 and Tsiadis v Patterson (supra) at paragraph [32]
217 Section 27L(1)(a) requires the Court to examine the length of and reasons for the delay. It is calculated by reference to the period of the accrual of the cause of action and the making of an application for an extension of time or issue of Writ.[109]
[109]See Spandideas v Vellar (supra) at paragraph [72]
218 In this case, the delay is from the date of delivery, 21 January 1999, to the date of issue, 11 May 2010, a delay of more than eleven years, which it was submitted was long.
219 Whilst counsel for the plaintiff submitted that the overwhelming reason for delay was failure to obtain stabilisation of her condition, such as would enable a fair trial, counsel for the defendant submitted that it was not at all a reason for delay.
220 It was submitted proper conduct on the plaintiff’s part would involve a commencing of proceedings in a timely fashion and raising issues of lack of stabilisation as a factor which might cause the trial to be adjourned.
221 Ultimately, however, stabilisation is never a requirement before a trial proceeds.
222 In assessing damages, it is the Court’s task to consider the likely path of the consequences of injury, including the likelihood for further surgery and of deterioration with or without surgery. Rather, once liability is established on balance, damages may be assessed by reference to estimating the value of the possibility of further deterioration, the possible need for future treatment and adjust the award to reflect the likelihood of future treatment.[110]
[110]See Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
223 Hence, there is no need for the Court to wait until the plaintiff’s condition stabilises in order to arrive at an appropriate assessment of damages.
224 Further, it was submitted that the plaintiff failed to provide adequate reasons relevant to the issue of delay regarding the following:
225 The plaintiff claimed that between 2000 and 2001, she sought advice from her general practitioners at Brooke Street regarding her discharge and that they allegedly advised her it was diarrhoea[111] or it was caused by infection and/or thrush.[112]
[111]T35
[112]T55
226 The plaintiff’s evidence was that she believed her treaters were not taking her seriously and Canesten was ineffective.[113] She said the condition worried her from April 2000 to November 2001 and onwards.[114] She stated during that time she thought there was a connection between delivery and symptoms and she agreed in cross-examination that what it was suggested was that there had been something really abnormal about what happened at the delivery.[115]
[113]T36,80
[114]T58-59
[115]supra
227 The plaintiff stated she wanted an explanation from Dr de Groot but “all he told me, he only had a quick look and he said to me that it was thrush or an infection”.[116]
[116]T46
228 Despite all that, the plaintiff did not seek a second opinion or specialist review until 2005, when she saw Dr Francis. Her reasons for that delay included a belief if she went to another doctor, she would just hear the same thing and that she stayed with the doctors at the Medical Centre because she liked them and was happy with them.
229 Whilst those reasons may explain the delay, it was submitted they do not support a case that it is just and reasonable to extend the limitation period.
230 Further, it was submitted that the plaintiff’s failure to call any evidence from her general practitioners in this application raised the inference that their evidence would not have assisted her in the application and indeed may have contradicted much of her evidence, particularly as the general practitioners’ records do not note any relevant complaint by the plaintiff of the discharge prior to November 2001, nor any diagnosis of thrush/ infection prior to 19 August 2004.
231 The plaintiff had submitted that stabilisation was relevant to considering the length of delay but the defendant disagreed.
232 Counsel for the defendant submitted that the failure to achieve stabilisation may be relevant to the nature and extent of the plaintiff’s loss, which fell for consideration under s27K(2). However, in this case the plaintiff says that as at 2001, she judged her condition as to be worrying and getting worse. Of itself, her complaint of suffering persistent faecal discharge from her vagina was a complaint of a serious condition. It was submitted there was no question of the plaintiff here discovering that her condition she previously thought benign had been uncovered to be serious, as she knew it was serious from 2000 or 2001.
233 It was submitted that the cases relied upon by the plaintiff were not authority for proposition lack of stabilisation was relevant to the question of delay.
234 In Callan,[117] the issue did not go to the issue of stabilisation as a factor in an extension of time application. The cited paragraph was written in the context of Williams J making observations about recognition of the seriousness of the plaintiff’s condition.
[117] Callan v Healthscope Ltd (supra) at 61
235 In Harris v Commercial Minerals Ltd & Ors,[118] it was a disease process. The present case is not one of progressive decline. Lovett[119] was similar being a case in which grave, but previously unsuspected, injuries were involved.
[118] supra
[119]supra
236 In Berriman v Cricket Australia,[120] the Court was considering a limitation statute with entirely different provisions relating to whether in the twelve months before issuing the plaintiff had ascertained a fact material to his case.
[120]supra
237 Subsection (c) and (d) have no relevance in this case.
238 It was submitted the time within which the cause of action was discoverable was long. Assuming the later of two possible periods of date of discoverability, the cause of action was discoverable from 2000 when the plaintiff first discovered the relevant symptoms until 2005 when without doubt she discovered the cause of her symptoms and was told they could be attributable to the circumstances of the delivery.
239 The relevant period for the purposes of s27L(1)(e) was submitted to be five years and ten months, the date of delivery to 7 November 2005.
240 Section 27(L)(1)(f) of the Act states:
“the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages.”
241 Although the plaintiff promptly sought legal advice after Dr Francis’ suggestion and promptly instructed solicitors to issue proceedings, it was submitted she had not adequately explained in her evidence why a copy of the Hospital records regarding the delivery were not promptly obtained after her meeting with Ms Toop in November 2005, despite the advice from that solicitor that her case could not be progressed until that had been done.[121]
[121]T65
242 Having been told by Ms Toop at that meeting that there were potential limitation issues and that “the first thing that the solicitor required was a complete copy of her file pertaining to the birth back in 1999”, it was submitted that thereafter the plaintiff did not act reasonably in that she took no, or no adequate steps, to challenge what she says she was told by Ms Toop when she made enquiries about progress with obtaining the file.
243 It was submitted that presumably medical expert opinion was then obtained within a reasonable time to review those records and a supportive opinion obtained to found the allegations of negligence in the Statement of Claim dated 9 June 2011. There was no explanation why expert medical opinion could not have been obtained years earlier than this, had the records been obtained and delivered to an expert in a timely manner, followed by a timely provision of a Statement of Claim detailing the allegations of negligence.
244 The plaintiff’s evidence was that she was told it would be sensible to begin a claim, even though treatment had not finished, to protect her position. She said she gave instructions to take whatever steps were necessary to protect her position, including the beginning of a proceeding as a matter of urgency,[122] and that was in November 2005.
[122]T66
245 However, thereafter, while she asked Ms Toop whether she had commenced a proceeding, the plaintiff accepted her assurance she was working on it and did not ask her if she had actually done it. She explained that she trusted her lawyer, but in the face of having advice that limitation was an issue, having given instructions to protect her position by commencing a proceeding, it was submitted there was no obvious reason why at the least the plaintiff would not have asked whether the proceeding had in fact been commenced.
246 It was submitted likewise, having been told by Ms Toop the first thing she would need would be the Hospital records, the plaintiff did no more than enquire from time to time about progress. Her evidence was she did not know how long it would take to get the records or any other records needed to progress her claim. However, it was submitted the plaintiff cannot be said to have acted reasonably in not pursuing her solicitor with further enquiry about how it could possibly have been taking so long for the records to be obtained.
247 It was submitted that a few months’ delay in that regard might be reasonable, but to have allowed the situation to drag on from November 2005 until the issue of a Writ in May 2010, and indeed after that, was far from reasonable when the plaintiff had been advised the records were a starting point for the investigation of her claim.
248 It was submitted as the plaintiff had not served any medical expert opinion on liability in support of her application, thus there was no basis for assessing the nature of any such advice she may have received, including whether she or her lawyers had made reasonable follow up of any matter arising from such opinion. Nor had the plaintiff explained the steps she or her solicitor had taken to obtain medical opinion on liability. The absence of this material was of particular importance as, without it, the Court was put in a position of being asked to extend time for a claim that may have no merit.
249 In exercising its discretion, it was submitted that a relevant consideration for the Court was whether there was any evidentiary support for the allegations in this proceeding. It was submitted that apart from Dr Francis’ note alluding to the need to obtain advice, there was no basis for forming a view whether the plaintiff’s claim was meritorious or not.
250 Counsel for the plaintiff had submitted that the Court should have regard to Ms Toop’s difficulties ascertaining what was happening with the treatment of the plaintiff’s condition.
251 Counsel for the defendant submitted however, that this information was irrelevant to the initial task facing the plaintiff and her solicitor, namely, to ascertain what had happened at the delivery and in the years before the plaintiff was diagnosed with a fistula in November 2005.
252 The plaintiff had provided no information, whether in her own affidavits or, more appropriately, from her solicitor, to explain what investigation of the claim was undertaken and what the results were over the relevant period. In the absence of any affidavit from her solicitor over that period, the Court was asked to draw an inference that the evidence from the solicitor would not have helped the plaintiff.
253 It was submitted that it might be inferred from the evidence concerning delay in obtaining records, that the plaintiff may have a claim against her solicitors. It was submitted it was not possible on the available material to conclude such a claim was available, nor was it possible to speculate about the prospects of success.
254 Whilst such a claim might be a relevant factor in a limitation application,[123] the plaintiff had provided no material on which any proper assessment of the issue could be made. It was submitted therefore, the matter could not be given any weight, other than to draw an inference that in the absence of any information from the solicitor, the plaintiff’s position would not have been assisted by the solicitor.
[123]See Tsiadis v Patterson (supra) at 123 per Buchanan JA, with whom Ormiston and Callaway JA did not dissent but did not decide.
Overview
255 I accept that the length of delay in this case is long, with over eleven years since the date the cause of action accrued and four and half years elapsing between the date of discoverability in November 2005 and the issue of the Writ in May 2010.
256 Whilst it was conceded there may be general prejudice with the effluxion of time[124] and the delay is long, I am not satisfied there is any specific prejudice which would be suffered by the defendant if an extension of time is granted.
[124]T105
257 The operating surgeon, Dr Priest, still practices in Kyneton and there is no evidence of any problems with his availability to give evidence.
258 Whilst the defendant’s solicitor deposed to the Hospital staff having no recollection of the events surrounding the procedure, none of these potential witnesses have gone on affidavit to this effect.
259 I accept that against any suggestion of prejudice, the defendant’s solicitor has exhibited to her affidavits the plaintiff’s medical records detailing every procedure undertaken from the date of the delivery.
260 From the pleadings it appears that the issues at trial may well be confined to the defendant’s management of the delivery. Although some recollection of events by witnesses may be required, the medical records are available for those witnesses to refresh their memory.
261 I accept that in the particular circumstances of this case and further, the insufficiency of the evidence adduced as to claimed prejudice, it is unlikely there will be prejudice to the defendant and I am not satisfied the passage of time has prejudiced a fair trial of the claim.
262 In my view, the plaintiff acted promptly and reasonably once she knew that the defendant’s conduct might be capable of giving rise to an action for damages.
263 Within a week of the confirmed diagnosis of a fistula, the plaintiff first saw Ms Toop on 23 November 2005. The plaintiff then instructed her to take proceedings on her behalf.
264 Whilst the Writ was not in fact issued until May 2010, the plaintiff was entitled to rely on her solicitor to act upon her instructions to institute proceedings.
265 As I noted earlier in the context of medical matters, the plaintiff is an unsophisticated, trusting woman, who relied on professionals to look after her interests. Prior to this proceeding, the plaintiff had had no experience of the legal system or legal matters.
266 The plaintiff did make enquiries of Ms Toop between 2005 and 2010 as to the progress of her claim and was advised by her that she was working on it and that she was awaiting the plaintiff’s medical records. Further, Ms Toop advised the plaintiff that treatment had to be concluded before she could take the plaintiff’s case much further.
267 The plaintiff did ask Ms Toop what was taking so long and she was told by her she was waiting for the records. The plaintiff thought, “… well, she’s a … lawyer, that’s her job. So, just wait”.[125] The plaintiff had not been to court before so she did not have a clue.[126]
[125]T75
[126]T75
268 The plaintiff was happy with the advice she was getting; she was following it in the belief that it would ultimately achieve the desired result. She was just a woman who had a very simple understanding of things.[127]
[127]T98
269 In these circumstances, the plaintiff was entitled to rely on Ms Toop’s advice and cannot be criticised for not seeking alternate legal advice. As such, any delay on Ms Toop’s part should not be visited upon the plaintiff herself.[128]
[128]Repco Corporation Ltd v Scardamaglia (1996) 1 VR 7, 13 per Smith J, with whom Brooking and Phillips JA agreed; Lord v Australian Safeway Stores Pty Ltd (1996) 1 VR 4, 620-621 per Phillips JA with whom Tadgell and Callaway JA agreed; Tsiadis v Patterson (supra) 120-122 at 25-29, per Buchanan JA, with whom Ormiston and Callaway JJA agreed
270 As Buchanan J said in Tsiadis v Patterson,[129] when determining an application under s23A, it is appropriate to have regard to the ability of the plaintiff to recover damages from a solicitor whose default has made the application necessary. The weight to be given to the availability of a cause of action against the solicitor will depend on the circumstances of each case.[130]
“…The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor's retainer, the instructions given by the client from time to time and by the manner in which the solicitor's work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided. … .”
[129](supra) at paragraph [27]
[130]Tsiadis v Patterson (supra) at paragraph [28]
271 It appears that Ms Toop was in breach of obligations she owed the plaintiff, but that is only hearing the plaintiff’s version of her engagement, with no evidence led, or submission made on behalf of Ms Toop.
272 On the limited material available in the present case, and the absence of any affidavit from Ms Toop, it is unclear whether the plaintiff would have a cause of action against her for failing to issue proceedings within the limitation period. There is no explanation from Ms Toop as to the reason for delay and what, if any, medical evidence she relied upon in the manner in which she conducted the plaintiff’s case on her behalf.
273 Thus in the present case, the likelihood that the plaintiff will succeed in an action against Ms Toop cannot be known with any precision.
274 This is a vastly different situation to Gordon v Norwegian Capricorn Line (Aust) Pty Ltd,[131] where Forrest J refused to grant an extension of time where there was a strong case against the plaintiff’s original solicitor which His Honour found to be a significant consideration.
[131][2007] VSC 517 at paragraph [114]
275 Counsel for the plaintiff relied heavily upon the lack of stabilisation in the plaintiff’s condition as a reason for the delay in issuing proceedings.
276 Whilst clearly there are further operative procedures to come, had the proceeding been issued within time, this situation could have been dealt with by an adjournment of proceedings. Lack of stabilisation is not a satisfactory explanation in this case for the failure to issue within time.
277 Further, I accept, as counsel for the defendant submitted, the Court was not required to wait for stabilisation to occur to arrive at an appropriate assessment of damages.
278 I was addressed briefly by counsel for the defendant as to the evidence relating to the nature and extent of the plaintiff’s loss. It was submitted that the Court was being asked to consider extending time for a claim which may have no merit.
279 Although no expert opinion has been relied upon by the plaintiff in this extension of time application, it would appear on the advice from Dr Francis, and also Dr Capes - Baldwin in November 2005, that both medical practitioners considered the claim had merit. Further, the plaintiff has deposed to very significant consequences that persist in relation to the fistula.
280 Balancing the considerations under s27L of the Act – the plaintiff’s explanation for delay, the reasonableness and promptness of her actions once she knew she may have a damages claim against the defendant, the lack of prejudice to the defendant and the uncertainty of the plaintiff establishing negligence against her solicitors, in my view, it is just and reasonable to make an order in favour of the plaintiff extending the period of limitation applicable to the cause of action pleaded in the plaintiff’s Writ dated 11 May 2010.
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